United States v. Cardenas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2003
Charles R. Fulbruge III
Clerk
No. 02-21333
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERTO IGNACIO CARDENAS
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-335-ALL
--------------------
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Ignacio Cardenas appeals from his sentence following
his guilty plea to illegal re-entry in violation of 8 U.S.C.
§ 1326. Cardenas argues that the district court erroneously
applied an 8-level enhancement for a prior aggravated felony
under U.S.S.G. § 2L1.2(b)(1)(C). Cardenas was previously
convicted in California for receipt of stolen property and was
sentenced to 48 months of probation with a 12-month jail term
ordered as a condition of probation. Relying on United States v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-21333
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Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999), Cardenas argues
that his prior conviction does not meet the definition of an
aggravated felony because he was sentenced directly to probation,
albeit with the 12-month jail term, and that his confinement as a
condition of probation was not a term of imprisonment.
Cardenas concedes that he did not specifically raise in the
district court the arguments he advances on appeal, but he argues
that the issue was preserved because his comments in the district
court were the functional equivalent of an objection and because
the district court indicated that it had considered his arguments
"every which way." We are unpersuaded. "'A party must raise a
claim of error with the district court in such a manner so the
district court may correct itself and thus, obviate the need for
our review.'" United States v. Krout, 66 F.3d 1420, 1434 (5th
Cir. 1995)(citation omitted). Because Cardenas objected to his
sentence in the district court on grounds different from those
raised on appeal, our review is for plain error. United States
v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). We
conclude that Cardenas has failed to show that any error in the
district court's application of the enhancement under U.S.S.G.
§ 2L1.2(b)(1)(C) was plain or obvious. See United States v.
Olano, 507 U.S. 725, 731-37 (1993); U.S.S.G. § 2L1.2, comment.
(n.2); 8 U.S.C. § 1101(a)(43)(G)(aggravated felony means "a theft
offense (including receipt of stolen property) or burglary
No. 02-21333
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offense for which the term of imprisonment [is] at least one
year").
For the first time on appeal, Cardenas also argues that
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional because
they treat the fact of a prior aggravated felony as a sentencing
enhancement to be found by a judge, rather than a separate
element of the offense to be charged in the indictment. He
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998), but wishes to
preserve the issue for Supreme Court review in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). This court must therefore follow the
precedent set in Almendarez-Torres "unless and until the Supreme
Court itself determines to overrule it." Dabeit, 231 F.3d at 984(internal quotation and citation omitted).
AFFIRMED.